Clough: keep QC title

As the law society prepares to select advocates for the rank of QC, Grania Langdon-down looks at the benefits of the quality mark for solicitors

The decision by the Lord Chancellor to retain the 400-year-old title of Queen's Counsel for the elite among barristers and solicitor-advocates - and to hand the task of selection to the Law Society and Bar Council - has raised the question of whether the accolade should be widened to take in skills other than advocacy (see [2004] Gazette, 4 June, 1).


As Michael Caplan QC, immediate past chairman of the Solicitors Association of Higher Court Advocates (SAHCA) and partner at London firm Kingsley Napley, says: 'Barristers may appear in court - but it is usually the solicitor who determines the way the case proceeds.


'It may be time to consider whether the criteria for taking silk should be extended into areas which are considered to be more the territory of solicitors than of the bar. After all, as Sir David Napley says in his book The Art of Persuasion, advocacy is 98% preparation.'


News that the title of QC is to be retained - although it will no longer be for life as future QCs who fail to come up to scratch will be stripped of the rank - has received a mixed response from solicitors.


For the Law Society, it is a 'missed opportunity' to demonstrate to the public that the new system is a clean break from the flaws of the past, while the bar was predictably pleased. For SAHCA - which has 700 members - the reformed rank is a 'fantastic opportunity' for solicitor-advocates to achieve parity with the bar in terms of the percentage of applications that are successful.


But, whatever the divergence of opinion within the profession, the pressure is now on the Law Society and Bar Council to work together to devise a new selection system to be in place by the autumn so the first batch of QCs to be subject to continuous assessment can be announced by next Easter.


Applicants will be assessed on their qualities such as advocacy ability, legal knowledge and integrity, and may face all-day assessments, similar to those used for prospective district judges. This will replace the old system involving so-called 'secret soundings' from judges and lawyers.


The Lord Chancellor, Lord Falconer, has made it clear he wants the new system to ensure that women, ethnic minorities and solicitors are better represented among QC appointments.


While he has retained the power to veto names put forward by the two professional bodies, he has said he hopes he will never have to use it. He has also stressed that the QC title is not guaranteed for ever and that a longer-term review of the legal services market, linked to the Clementi review of regulation, will compare it with honorific titles in other trades and professions.


According to the most recent figures, there are eight solicitor-QCs, all men, among 2,178 solicitor-advocates, of whom 530 are women. The Solicitor-General, Harriet Harman, a qualified solicitor, was also awarded the rank on appointment to the role.


There is no clear breakdown of figures for how many solicitor-advocates come from different ethnic minority backgrounds.


Philip Reed, a partner in the dispute resolution department at City firm Norton Rose and a SAHCA committee member, says devising a selection process is not going to be easy.


He says: 'There is no disguising the fact that an objective test of advocacy excellence is difficult to achieve. It has got to be based on the hard world of the courtroom but it will also have to include the respect and standing in which people are held. However, we are no longer a small profession where everyone knows each other, so there is always going to be an element of judgement involved.'


Law Society President Peter Williamson says the Society expects keen competition from both solicitor-advocates and barristers under the new system. 'We believe it is indefensible that there are more than 2,000 solicitor-advocates, yet only eight solicitor QCs. However, if the new system is fair and transparent, barristers and solicitor-advocates will face the same assessment system and neither profession will be able to complain about the outcome.'


Mark Clough QC, the current chairman of SAHCA, joined City firm Ashurst as a partner specialising in EU and competition law in 1995 after 15 years at the bar. He says that if there is a move to have a title that acknowledges skills other than advocacy, his initial instinct is that the title of QC should be retained for its traditional recognition of courtroom skills.


However, he says: 'I would have no objection to there being a kitemark for other areas of practice. Most lawyers are fairly down to earth. If, in five years' time, you can call yourself lawyer one, two, or three [on a gradation of skill], if you are particularly good in your field, no one is going to lose any sleep if they are not called QC or if QC applies to employment and corporate lawyers, for instance, as well as litigating solicitors and advocates.'


For Mr Williamson, the Law Society's long-term objective is to see the system widened to recognise excellence across the range of legal disciplines, not just advocacy. 'In the future, we want to develop an accreditation scheme that rewards other types of practice so that if a member of the public is searching for an experienced family law expert, they can be sure that all family QCs have the necessary competency and experience.'


When it comes to the continuous assessment of future QCs, he says re-validation at regular intervals is 'essential' to guarantee that the highest standards are maintained.


However, Mr Clough says: 'Clearly, if someone is abusing their position, there should be a procedure to remove them. But I am not sure you want a built-in expiry date that you must appear for reassessment every "x" number of years. There may need to be some proactive intervention by a consumer or another professional, perhaps through a complaints procedure. However, who is going to decide you are no longer good enough? It would be unwise to rush into a hasty formula for this.'


For Mr Clough, the success of the new system will hinge on the ability of the Law Society and Bar Council to co-operate closely in devising open and transparent criteria for selection. 'While we would hope to see a significant increase in the number of solicitor-advocates, I don't think the bar should see this as somehow a "dilution" of the title.'


Robin Knowles QC, a barrister at 3-4 South Square in London and member of the joint Bar Council, Law Society and Department for Constitutional Affairs working party on silks, agrees. 'I think the critical issue is that the award is made on merit, regardless of professional branch.


'We must not allow there to be rivalry in drawing up the criteria - the rank is too important for that. I think we all saw the value of what can be achieved if we work together, as happened during National Pro Bono Week [last month], and I believe we can do the same with silk.'


He maintains that as long as the reformed rank is seen to be awarded on merit, it will bring forward those of ability from every background. 'This has already been happening in the case of ethnic minority lawyers. Both sides of the profession [also] have a healthy proportion of female members and I look forward to that proportion being reflected among those holding the leading ranks.'


Yvonne Spencer, who works at the Children's Legal Centre, an independent charity attached to the University of Essex, has been a solicitor-advocate for two years. A SAHCA committee member, she says: 'Any system which addresses the lack of transparency that has worked against solicitor-advocates in the past and which provides more equality of arms is to be applauded. The issue of the under-representation of women and ethnic minorities should be addressed once you have parity between barristers and solicitor-advocates. If this isn't reflected in the next generation of solicitor-advocates, it will be grossly unfair.'


For Ms Spencer, who recently acted for Shabina Begum, the girl fighting to be allowed to wear strict Islamic dress at school (see Law Reports ), parity between solicitor-advocates and barristers at QC level should also end other inequalities, such as the different court dress worn by solicitor-advocates and junior barristers.

'The fact that you are wearing the same dress as the ushers is mightily embarrassing, and some counsel make sure they address you as "my friend" while you have to call them "my learned friend". It is historical stuff and nonsense and we need to sort that out before we can really move on.'


What to some, especially at the bar, is the sideshow of court dress indicates how tough these issues affecting life in court are. A government consultation closed in August 2003 and the Department for Constitutional Affairs has yet to announce a decision on the way forward.


If finding a blueprint for this has been hard to decide, one can only imagine the problems to come as both sides of the profession sit down together to track a future path for QCs.


Grania Langdon-Down is a freelance journalist